Re Australian Building Construction Employees and Builders' Labourers' Federation v Dillingham Australia Limited [1982] FCA 23; (1982) 58 FLR; 170 (5 March 1982)

FEDERAL COURT OF AUSTRALIA

Re: THE AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES AND BUILDERS' LABOURERS'
FEDERATION
And: DILLINGHAM AUSTRALIA LIMITED [1982] FCA 23; (1982) 58 FLR 170
No. 42-47 of 1981
Industrial Law - Conciliation and Arbitration
1 IR 224

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Sheppard J.(1)

CATCHWORDS

Industrial Law - prosecution of employer for breaches of award - employees engaged on construction of chimney stacks for new power station - whether chimney stacks buildings within meaning of scope clause of award - whether work being done building work within meaning of clause - Conciliation and Arbitration Act 1904, s.119; Building Construction Employees and Builders Labourers Award 1978, clause 6.1.

Conciliation and Arbitration - Alleged breach of award - Preliminary question - Employees engaged on construction of chimney stacks for power station - Whether chimney stacks buildings - Whether work was building work - Conciliation and Arbitration Act 1904 (Cth), s. 119. The Building Construction Employees' and Builders Labourers' Award 1978 (the award) provided in part: "6.1 This paid rates award applies . . . only in respect of - 1. the employment of persons as builders labourers about any building . . . ; 4. (persons employed) as scaffolders, riggers . . . on any building contract . . . ; 7. or (persons) doing concrete work . . . in connexion with or incidental to the foregoing operations; 8. and including all builders labourers employed as such in connexion with all work of the building industry performed on the site thereof."

The applicant commenced proceedings under s. 119 of the Conciliation and Arbitration Act 1904 seeking the imposition of a penalty upon the respondent for alleged breaches of the award. Pursuant to O. 29, r. 2 of the Federal Court Rules a preliminary question was formulated in the proceedings in the following terms: "Whether persons employed by the respondent at the Eraring Power Station in connexion with the construction of chimney stacks are covered by the Building Construction Employees' and Builders Labourers' Award 1978."

Held: (1) The chimney stacks were not buildings within the first part of cl. 6.1 of the award.
Re Marks; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation [1981] HCA 33; (1981), 55 ALJR 516, discussed.

(2) Nor should the word "building" where used as an adjective in the other parts of cl. 6.1 be given any wider meaning and so did not include the chimney stacks.

HEARING

Sydney, 1981, November 9, 11; 1982, March 5. 5:3:1982
APPLICATION. PRELIMINARY QUESTION.

In proceedings under s. 119 of the Conciliation and Arbitration Act 1904 a preliminary question was formulated pursuant to O. 29, r. 2 of the Federal Court Rules.

P. R. A. Gray, for the applicant.

R. P. Meagher Q.C. and A. Ashburner, for the respondent.

Cur. adv. vult.

Solicitor for the applicant: G. J. Capogreco.

Solicitors for the respondent: Pigott Stinson.
T. J. GINNANE

DECISION

In these proceedings (the six matters were by consent ordered to be heard at the same time) the applicant sues the respondent for penalties pursuant to the provisions of s.119 of the Conciliation and Arbitration Act 1904 ("the Act"). It is the applicant's contention that the respondent is in breach in a number of respects of the Building Construction Employees and Builders Labourers Award 1978 ("the award") (Print No. D6307), made on 16 June, 1978. It is not in contest that both the applicant and the respondent are parties to the award, the respondent being named as a respondent thereto.

There are a number of issues between the parties. A threshold question is whether work being done by some 12 members of the applicant organisation is within the scope of the award. If it is not the applicant's actions must fail. The facts upon which the answer to this question depends are not in issue. For this reason I decided, with the agreement of the parties, to formulate a question pursuant to Order 29 Rule 2 of the Rules and to order that that question be determined before any other question in the proceedings. The question so formulated was, "Whether persons employed by the respondent at the Eraring Power Station in connection with the construction of chimney stacks are covered by the Building Construction Employees and Builders Labourers Award 1978"?

The question at issue involves the construction of the scope clause of the award, particularly clause 6.1 thereof. The clause runs together a number of different categories of employees either with reference to the work in which they are engaged or the callings which they pursue. Rather than set out the clause as it appears in the award I have broken it up into eight paragraphs. This will make its terms easier to refer to when I come to discuss them later on. The clause broken up in this way is as follows:

"6.1 This Paid Rates Award (as defined) applies in the States of Victoria, South Australia, Queensland (as defined), Tasmania, New South Wales (as defined), and Western Australia and only in respect of -

1. the employment of persons as builders' labourers about any building (and in Victoria, South Australia and Tasmania including bridges but not including overpasses and/or underpasses not being bridges) and including silos of all kinds, granaries and grain or grain product storage depots

2. or assisting any bricklayer, mason, plasterer, carpenter, plumber or any tradesman engaged in building operations

3. or employed on any making or contracting job in wood, stone, brick, concrete, iron or steel or combination of those or other materials incidental to building construction, repair demolition or removal of buildings

4. or as a scaffolder, rigger, gear hand, gantry hand or crane hand, dogman, drainer, powder monkey, pile driver, jack hammerman, winch or hoist driver, tackle hand, mixer driver, steel or bar bender, operator of motorised dump barrows, monorail skips, vibrators for packing concrete, concrete screeders, or concrete batching plants on any building contract

5. and any labourer assisting a tradesman on building sites in placing pre-stressed or pre-cast concrete components, or in placing curtain walling, or in work in connection with the lift slab method of erection,

6. and any labourer on building sites in New South Wales erecting or dismantling elsewhere than in New South Wales steel formwork or supports thereto, any labourer excavating ground for foundations and basements of buildings or levelling ground on the site of and within the alignment of the actual building to be erected,

"7. or doing concrete work, tar paving or asphalt work or mortar or concrete mixing in connection with or incidental to the foregoing operations

8. and including all builders' labourers employed as such in connection with all work of the Building Industry performed on the site thereof."

The principal facts necessary to be known in order that the question at issue might be determined were agreed upon. They are as stated in a decision of Marks J. of the Australian Conciliation and Arbitration Commission ("the Commission") in a matter of an application by the applicant here for an order pursuant to s.142A of the Act that it should have the right to exclusive representation of employees at the Eraring Power Station chimneys construction project (C No.1316 of 1980). The decision is dated 1 June, 1981, and is Print No. E 6366. The paragraphs numbered 3 to 8 inclusive of the decision were specifically agreed on by the parties in the proceedings before me.

I paraphrase what is in those paragraphs. The Eraring Power Station is being constructed on a site not far from Newcastle, New South Wales, for the Electricity Commission of New South Wales. The overall design and planning of the project has been carried out by the Electricity Commission. It has let a number of contracts. Amongst these is a contract let to the respondent for the construction of two reinforced concrete chimney stacks, including work on the foundations of each stack. Each stack is 200 metres high. Stack No.1 is piled with steel piles to a depth of 11 metres through the earth to rock. A ring of concrete 2 metres thick is built upon the pile foundation. The base of stack No.2 sits directly on "native conglomerate".

There are four boilers. These are located in two boiler houses, two in each house. Each pair of boilers is served by one chimney stack. The effluent gases from the boilers are taken by ducts to the chimneys. This will occur after such gases have passed through precipitators designed to extract "excess toxic and rubbish material". Thus, although the stacks are connected to the boiler houses by ducting, they are separate therefrom.

The shell of each chimney stack is erected by an operation which involves setting up formwork, placing the reinforcing steel, setting up further formwork and filling the formwork with concrete. The formwork is moved up, with the aid of a steel climbing tower which has a cruciform over the top of the stack and four telescopic legs which enable the tower to be moved upward after each pour. The detail of how this is done is contained in Marks J's. decision. It is unnecessary, for my purposes, to refer to that detail.

The interior of each stack is or is to be lined with a single layer of acid resistant bricks supported by corbels (projections) cast into the concrete structure of the stack.

The persons who are members of the applicant and who are claimed by it to be covered by the award, are employed as scaffolders and not as tradesmen's assistants. Each holds a scaffolders certificate issued by the Department of Labour and Industry (N.S.W.). They are interchangeable as scaffolders, steel fixers and concrete finishers.

In addition to having the benefit of Marks J's. account of the structure and the method of construction which is being employed, I have also had a number of photographs of the stacks, one of which appears to be complete and the other in the course of construction. The two stacks are, as the measurements earlier given would indicate, of immense size. They are of reinforced concrete construction and their construction involved the continual use of scaffolding and formwork both inside and outside the structure. The stacks are an integral part of the power station. Without them it could not operate. More particularly they are an essential adjunct to the boilers which are housed in buildings separate from, although connected to, the two stacks by way of ducting.

In the submission of the applicant the men in question were employed as builders' labourers about buildings, the two stacks being buildings within the meaning of the scope clause of the award earlier set out. Alternatively, it was the applicant's submission that the men were engaged as scaffolders or riggers on a building contract, were labourers on a building site in New South Wales erecting steel formwork or supports thereto or were doing concrete work in connection with or incidental to "the foregoing operations". These words were said to pick up all that had gone before and thus brought in the earlier expressions "building operations" and "building construction". Finally it was submitted that the work came within the last category in the scope clause in that the men were employed in connection with work "of the Building Industry performed on the site thereof".

In the submission of the respondent the stacks were not buildings within the meaning of the scope clause. Furthermore, each of the expressions "building operations", "building construction", "building contract", "building sites" and "building industry" was to be read as limited to work performed in connection with buildings of the kind contemplated in the clause. They were not to be given any wider meaning based on the notion that building work may involve the construction of structures or edifices which are not buildings in ordinary parlance.

A further submission made by the respondent was that if, notwithstanding its earlier submissions, the work was not within the scope clause of the award, the award went beyond the ambit of a dispute which the applicant, by its rules, had power to create and was, to that extent, invalid.

The first question to determine is whether the stacks are buildings for the purpose of the award. I have found this a most difficult question. Some assistance in resolving it is to be found in the recent decision of the High Court in The Queen v. Marks; ex parte The Australian Building Construction Employees and Builders' Labourers Federation [1981] HCA 33; (1981) 55 A.L.J.R. 516 ("the Omega case"). But that case involved the construction, not of the scope clause of this award nor the eligibility clause of the applicant's rules; rather it involved the construction of the eligibility clause of the rules of the Federated Ironworkers Association of Australia ("the F.I.A.A."). That clause included the callings of riggers and scaffolders but excluded, amongst others, riggers and scaffolders employed in building operations. Thus the only expression used was "building operations". The question of the meaning of the noun "building" did not directly arise. The structure in question was the tower for the Omega navigation station being constructed in Victoria. The tower, which is the principal feature of the station, is a triangular lattice steel guyed mast 427 metres in height supported by 18 radial guys anchored to anchor blocks on the ground. One of the questions in the case was whether the F.I.A.A. was prevented, by reason of the exception, from representing six riggers engaged in the erection of the mast. Mason, Murphy and Brennan JJ. held that it was. Aickin and Wilson JJ. dissented. Brennan J., and by inference Aickin J.(p.525) and Wilson J. (p.527), thought that the mast was not a building (p.528). However, Brennan J. considered that the phrase "building operations" was to be given a more extensive meaning than one which would limit it to operations in connection with buildings strictly so called. With that view both Mason J. and Murphy J. agreed (pp.522 and 524). But Murphy J. also considered that the tower was a building (p.523). Mason J. was also inclined to take that view (p.522). However, a majority of the Court thought that the Omega tower was not a building. They were of this opinion, apparently, because "building" in normal usage connotes a structure with doors and a roof designed to house people, animals, plant or machinery. Such a view is based not only upon common understanding but upon what was said by the Court of Appeal in England in Moir v. Williams (1892) 1 Q.B. 264, where Lord Esher said (p.270) that what is ordinarily called a building is an enclosure of brick or stone work covered in by a roof.

Each case must depend upon its own facts and circumstances. The most important of these will be the context in which the word is used and the nature of the structure which is in question. For that reason the decision of the High Court in the Omega case is not determinative of what I should do. Although the same union is involved, the clause in question was not the clause here nor was the structure there considered either of the chimney stacks at Eraring.

Nevertheless, I can take this much from the decision. Three members of the Court gave the word "building" what I might describe as a conventional meaning and thought, accordingly, that a free standing tower was not a building in that sense. To my mind there is no essential difference, subject to one matter to which I must come, between a free standing chimney stack made of concrete and a free standing mast made of steel. Once one concludes that "building" denotes a structure with walls and a roof it follows that neither edifice fits that description.

But that view overlooks one substantial difference in the present case. It is the association of the boiler houses, the boilers and the chimney stacks. In the submission of the applicant these are all so connected as to be one. In other words, the chimney stacks are integral parts or adjuncts of the boiler houses which are themselves plainly buildings. I agree that the boiler houses are buildings. But the chimney stacks are not so much connected to the boiler houses as to the boilers themselves. They stand clearly apart and away from the boiler houses. A separate contract has been let for their construction. In all the circumstances I do not consider them to be connected to the boilers or the boiler houses to such an extent as to make them part of the boiler houses themselves.

Not without some hesitation, I have therefore reached the conclusion that the chimney stacks are not buildings within the first part of the scope clause of the award.

The second part of the clause applies to persons assisting tradesmen. It does not therefore apply to the employees here except insofar as it is picked up by the expression "foregoing operations" which is used towards the end of the clause. That is a matter to which I shall return. The third part of the clause, which includes the words "incidental to building construction", is not in point because the work here could not be said to be incidental to building construction. The work is not incidental to any other construction.

The fourth part needs more careful consideration. Relevantly it extends the scope of the award to persons employed as scaffolders and riggers "on any building contract". This raises the question of what is meant by the expression "building contract" in that context. The same considerations apply in relation to the sixth part which extends the benefit of the award to labourers on building sites in New South Wales erecting steel formwork or supports thereto. This raises for consideration the meaning of the expression "building sites". If the contract in question is a building contract or the site a building site within the meaning of the clause the employees are covered by the award.

The fifth part of the clause has no application. Like the second part it applies only to tradesmen's assistants.

The words "foregoing operations" in the seventh part pick up employees doing concrete work in building operations (see the second part). Although the clause in question was the eligibility clause in the rules of the now applicant, the decision of the High Court in The Queen v. Watson; ex parte Australian Workers Union [1972] HCA 72; (1972) 128 C.L.R. 77 plainly establishes that to be the case - see pp.78, 84, 90 and 95. To the extent that the men here are doing concrete work, they will be covered by the award if that work is being done in "building operations". The words "foregoing operations" in the seventh part of the clause also pick up the reference to "building construction" in the third part therof. But in my opinion that is of no assistance to the applicant because the employment which is referred to is in a making or contracting job "incidental to building construction". As previously said, the work of constructing the chimney stacks was not incidental to any other work.

The eighth part of the clause ought not, in my opinion, be given any extensive or all embracing meaning. It is, I think, a precautionary provision intended to catch what may, by oversight, have been left out of the more particular parts of the clause which precede it. Nevertheless it does raise for consideration the meaning which should be accorded to the expression "building industry".

Granted that the men in question are employed in one or more of the callings or activities specified in the clause, the problem is to determine whether they are engaged in such pursuits "on a building contract", "on a building site", "in building operations" and/or in the "work of the building industry". In other words, what meaning is to be given the word "building" when used in this context? The choice is between a meaning giving the word an operation co-extensive with the word "building" where used as a noun in the first part of the clause, and a more extensive meaning which accords with that given the word by the majority of the Court in the Omega case.

At the outset it should be said that nothing in the Omega case obliges one to come to the conclusion that it is the more extensive meaning which should be selected. That is because the word "building" in the provision there in question was, in the view of the majority, used only as an adjective. It was not used, in their opinion, to describe what it was that was being constructed; rather it was used to describe the nature of the work or operation which was being carried on or carried out. The word was not, as here, used in any part of the relevant provision as a noun. In my opinion that is a very important consideration.

A further matter of importance is that an examination of what is involved in any of the second to seventh parts of the clause does not lead one to think that it was intended to bring in work on or in connection with any but conventional buildings except insofar as concerns the specific structures mentioned in the first part of the clause. The reason for the later parts thereof was to make it clear that all sorts of work done, otherwise than by tradesmen, in and about building sites was to be included. Thus the second part catches tradesmen's assistants as does the fifth. The third part catches work incidental to building construction, the fourth the work, on building contracts, of the various classifications of workmen there mentioned, the sixth the erection and dismantling, on building sites, of steel formwork and the work of excavating and levelling ground and the seventh the doing of concrete work and other work there mentioned in connection with the earlier specified operations.

None of these parts of the clause thus requires the word "building", there used as an adjective, to be given a wider meaning than the word where earlier used as a noun. The final part of the clause does not add materially or substantially to what has gone before in the more specific parts of it.

The considerations I have so far mentioned would lead me to the conclusion that the respondent's submissions should be accepted. That conclusion would be in line with the view of both Barwick C.J. and Menzies J. in The Queen v. Watson; 128 C.L.R. at pp.79 and 85. It is true that their views were discounted by Mason J. in the Omega case; 55 A.L.J.R. at p.522. But what he said, as he really acknowledges in the relevant passage, is itself obiter. More importantly, perhaps, he there makes it clear that he is not dealing with a clause such as this.

Recently the Commission, by majority, determined that the eligibility clause of the rules of the applicant was to be given a meaning similar to that which I consider the scope clause of the award to have; The Australian Building Construction Employees' and Builders Labourers' Federation v. Electric Power Transmission Pty. Limited, 7 October, 1981, Print No. E 7792. Williams J's. dissent is plainly because of the effect he thought the Omega case had. That is not, with respect, a view which I share.

In two of the judgments in the Omega case reference is made to the history of the eligibility clause of the applicant here. Murphy and Wilson JJ. used that history, or part of it, in support of the different conclusions to which they came. During the argument before me extensive reference was made to cases decided in the Commonwealth Court of Conciliation and Arbitration on the meaning of the eligibility clause in the rules of the applicant as it has been from time to time. These cases included those referred to by Murphy and Wilson JJ. and a number of others as well. Some of these indicate that the eligibility clause was in terms different from the clause as it now is. In others it is difficult to discern from the report what the terms of the clause were. Whilst I think reference to these older authorities is helpful, I do not think they are decisive. They are to a degree conflicting. In the end I think it is safer to have regard to the words which are now in question. Having done so, I have, for the reasons earlier given, reached the conclusion that the submissions of the respondent are to be preferred.

My conclusion in that regard makes it unnecessary to deal with the respondent's final submission based on differences between the scope clause of the award and the eligibility clause in the rules of the applicant.

Accordingly, I propose to determine the question at issue adversely to the applicant. I do not, however, make formal orders now. The matter will be stood over for a short time to enable counsel to consider what I have said. When it is again in the list counsel for the respondent are to bring in short minutes of order to give effect to my decision.